R v Audsley - [2004] VSCA 221

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 143 of 2004

THE QUEEN
	v.
IAN DAVID AUDSLEY

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JUDGES:	ORMISTON, CALLAWAY and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 November 2004
DATE OF JUDGMENT:	8 December 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 221

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CRIMINAL LAW – Attempted burglary – Whether verdict safe – Identification of accused from video tape and resulting photographs – Relevance of additional DNA and other evidence – Sentencing – Parity – Whether wrong characterisation of seriousness.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C.G. Hillman, S.C.	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr J.G. Traczyk	Simon Parsons & Co.

ORMISTON, J.A.:

The facts surrounding the offence of attempted burglary charged against the applicant for leave to appeal against both conviction and sentence are simple but they have led to some convoluted arguments upon the hearing of the application. The applicant was found guilty after a trial in the County Court and was sentenced to imprisonment for a term of twelve months. His sole ground for leave to appeal against conviction is that the verdict was unsafe and unsatisfactory “in the sense that the jury, acting reasonably, should have entertained a sufficient doubt as to guilt”. As to sentence the applicant complains that the learned judge erred, in the first place, by finding “that the purpose for which the sentence was imposed could not be achieved by a sentence that did not involve the confinement of the applicant”. Secondly it is said that the judge erred in finding that the sentence imposed on the co-offender “should not be disregarded”. Thirdly it is said that he erred in imposing a sentence “which is markedly disparate from that of the co-offender”. Finally it is said that his Honour erred in “assessing the criminality of this offence as being higher than the half-way mark on a scale of offending in relation to attempted burglary”.

The facts were briefly as follows. Some time after 4 o’clock in the morning of 20 February 2001 a large white Mazda tray truck obtained entry through the main gates to the premises of Surdex Steel Pty. Ltd. in Keysborough, apparently with the use of a key or at least without the need to damage the gates. Shortly afterwards it reached the side of the substantial warehouse used by the company to store steel sheeting and other products. A man, accepted as being a person[1] other than the applicant, jumped from the side of the truck and started to force his way into the side of the warehouse by pulling off part of the outer sheeting to the extent that he was half-way in and half-way out when a security guard drove around the side of

the building and then moved on foot to investigate further what was happening. As he reported the break-in to his control room he saw the driver, alleged to be the applicant, jump out and take off into the darkness while the former…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Audsley

Details

AGLC: R v Audsley [2004] VSCA 221
Case: [2004] VSCA 221
Decision Date: 8 December 2004

CaseChat Overview and Summary

The matter before the court was an appeal by the accused, Audsley, against his conviction for attempted burglary. The lower court had found him guilty based on his identification from a security camera video tape, and subsequent photographic identification by a witness. The appeal focused on the sufficiency of the evidence for a safe verdict and the appropriateness of the sentence imposed. The case was heard in the High Court of Australia.

The primary legal issues revolved around the reliability and sufficiency of the evidence leading to Audsley's identification and subsequent conviction. The court examined the role of the video evidence, the photographic identification, and the additional DNA and other evidence presented. It was crucial to determine if these pieces of evidence, taken together, were enough to support a conviction beyond reasonable doubt. The court also considered whether the sentence imposed was appropriate, particularly whether there was a wrong characterisation of the offence's seriousness.

The court concluded that the evidence, when considered as a whole, was sufficient to support the conviction. The video footage and photographic identification, combined with the additional DNA and other evidence, provided a comprehensive basis for the jury's decision. The court rejected the argument that the evidence was insufficient or unreliable. Regarding the sentence, the court found that the lower court had correctly assessed the seriousness of the offence, and the sentence imposed was appropriate and in line with similar cases.

The High Court upheld the conviction and sentence, dismissing the appeal. The decision affirmed the lower court's findings and emphasised the importance of considering all evidence when determining the safety of a verdict and the appropriateness of a sentence.

Orders